In an effort to encourage brownfield site redevelopment and renewable energy development on contaminated sites, on December 5, 2012, EPA issued a guidance document designed to clarify the scope of enforcement discretion the agency will provide to tenants who undertake steps to avoid liability under CERCLA’s Bona Fide Prospective Purchaser (“BFPP”) provisions. In conjunction with the guidance memorandum, EPA also issued three new model comfort/status letters for lessees involved in renewable energy development on contaminated property.
On November 6, 2012, a federal district court denied the request of federal prosecutors to empanel a sentencing jury in U.S. v. CITGO Petroleum Corp., Case No. 06-cr-563 (S.D. Tex.), for the purpose of determining facts necessary to support a fine associated with CITGO’s “gross, pecuniary gain” under the Alternative Fines Act. The court so held because a sentencing jury “would unduly complicate or prolong the sentencing process.” As a result, the government’s proffered calculation of more than $2 billion under the Alternative Fines Act – aimed at recouping double the Refinery’s total profits over a ten-year time span – may be in jeopardy.
Businesses that own contaminated property in Missouri, such as brownfield sites and former industrial locations, can avail themselves of Missouri’s Environmental Covenant Act (MoECA), RSMo Section 260.1000 et seq., 10 CSR 25-18.010(18) to expedite cleanup and, if site conditions allow, beneficial reuse of those properties. In particular, property owners can record an environmental covenant on their property that restricts certain land uses and site activities to minimize exposure to impacted soils and groundwater.
On November 13, 2012, EPA Region 7 issued its final decision on the Missouri Department of Natural Resources’ (MDNR) list of impaired waters, bringing the total number of impaired waters on the Missouri 2012 303(d) list to 258.
For the past year, EPA has been posting a monthly “Watch List” of companies allegedly in violation of the Clean Air Act, the Clean Water Act, and the Resource Conservation and Recovery Act. The Watch List includes those facilities that purportedly have high priority violations under the CAA, and facilities with significant noncompliance status under the CWA and RCRA.
On October 29, 2012, the U.S. Court of Appeals for the Sixth Circuit dealt the EPA a setback by denying its motion to rehear the court’s August 7, 2012, decision in Summit Petroleum v. EPA, 690 F.3d 733 (6th Cir. 2012). In Summit Petroleum, the court rejected the agency’s interpretation of its own regulations concerning when multiple emission sources are to be treated as a single source for air permitting under the Title V program. Consequently, when evaluating whether to aggregate multiple air emission sources based on if those sources are “adjacent” to one another, the agency is required to consider the ordinary meaning of the term adjacent (e.g., physical and geographical proximity), and not the functional interrelatedness of those sources as argued by EPA.
EPA Region 1 and the Massachusetts Department of Environmental Protection announced recently the largest ever single-site Superfund “cash-out” settlement, $366.25 million (plus interest), associated with the New Bedford Harbor Superfund Site in New Bedford, Massachusetts.
Under the revised Green Guides, the FTC cautions advertisers on general environmental benefit claims, like “green” or “eco-friendly” due to the inability to substantiate such claims. Instead, marketers should qualify general claims with specific environmental benefits, and such qualifications should be clear, prominent, and specific.
In a long-awaited landmark ruling, the California Supreme Court in State of California v. Continental Insurance Company, 55 Cal. 4th 186, 281 P.3d 1000 (Cal. 2012), has held that insurers issuing CGL “occurrence” policies are obligated to pay all sums to indemnify policyholders for property damage attributable to the Stringfellow Superfund site. Additionally, the decision addresses “stacking” of policy limits when more than one policy is triggered by an occurrence, permitting each policy triggered to be called upon to the extent of its full limits, thereby allowing potential recovery up to the combined limits of all policies.
Companies with current or former operations in New Jersey, particularly those with operations situated on industrial properties and contaminated sites, have a new means to make the New Jersey Department of Environmental Protection (NJDEP) prove up responsibility for site contamination before joint and several strict liability may attach under the New Jersey Spill Compensation and Control Act (Spill Act). In a decisive unanimous opinion, the New Jersey Supreme Court recently held in NJDEP v. Dimant that the Spill Act requires a “reasonable link between the discharge, the putative discharger, and the contamination at the specifically damaged site.”